FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 34971/97

by Edison TRUJILLO LOZANO [Note1]

against the Netherlands [Note2]

The European Court of Human Rights ( First Section) sitting on 8 December 1998 as a Chamber composed of

Mrs E. Palm, President

Mr J. Casadevall ,

Mr L. Ferrari Bravo,

Mr C. Bîrsan ,

Mr B. Zupančič ,

Mrs W. Thomassen ,

Mr T. Pantiru ,

with Mr M. O’Boyle, S ection Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 31 October 1996 by Edison TRUJILLO LOZANO against the Netherlands and registered on 18 February 1997 under file No. 34971/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Colombian citizen, born in 1962, and currently serving a prison sentence in Rotterdam, the Netherlands. Before the Court he is represented by Mr Th.A . de Roos , a lawyer practising in Amsterdam.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 13 August 1992 the applicant was taken into police custody ( inverzekeringstelling ) on suspicion of incitement to murder, followed by pre-trial detention ( voorlopige hechtenis ) on 14 August 1992. The applicant denied any involvement in the offence of which he was suspected. On 17 November 1992 the public prosecutor ordered the applicant’s release as the maximum period of time during which pre-trial detention was allowed was nearing its end. However, in his decision of 17 November 1992 the prosecutor added that the investigation would continue.

The applicant was again taken into pre-trial detention on suspicion of the same offence on 3 May 1994 by the Investigating Judge ( Rechter-Commissaris ) of The Hague. It appeared that on 26 April 1994 a witness, X., had made a statement to the police to the effect that the applicant had told him in August 1992 to shoot a person. The Investigating Judge considered that this constituted a new serious grievance against the applicant, justifying a remand order ( bevel tot bewaring ).

A pro forma hearing before the Regional Court ( Arrondissementsrechtbank ) of The Hague was set for 4 August 1994 on which date the hearing was adjourned until 27 October 1994. The Regional Court convicted the applicant on 10 November 1994 of being an accessory to the offence of incitement to murder and sentenced him to fifteen years’ imprisonment with deduction of the time spent in pre-trial detention.

Both the applicant and the public prosecutor filed an appeal with the Court of Appeal ( Gerechtshof ) of The Hague. Before this Court hearings took place on 10 April and 12 June 1995. On this last occasion counsel for the applicant argued that the reasonable time as referred to in Article 6 § 1 of the Convention had been exceeded in view of the fact that it had taken more than two years after the applicant had been taken into police custody before the case had come to trial. For this reason the prosecution should either be declared inadmissible or the sentence to be imposed on the applicant should be mitigated.

On 26 June 1995 the Court of Appeal quashed the judgment of the Regional Court for technical reasons, convicted the applicant of the same offence and sentenced him to eighteen years’ imprisonment with deduction of the time spent in pre-trial detention. The Court of Appeal based this conviction to a decisive extent on the statement made by the witness X. to an Investigating Judge on 21 June 1994. In respect of the period of time which had elapsed before the case came to trial, the Court of Appeal held that the decision to order the applicant’s second period of pre-trial detention had been justified in view of the new and serious grievances against him which had only come to light at a later stage and which had not yet been examined. A reasonable time had therefore not been exceeded.

The applicant filed an appeal in cassation with the Supreme Court ( Hoge Raad ),  again raising the argument that a reasonable time had been exceeded. The applicant argued that the expeditious handling of the case subsequent to the witness’s statement on 26 April 1994 did not take away from the fact that prior to that time the prosecuting authorities had failed to carry out any kind of activity.

On 7 May 1996 the Supreme Court rejected the applicant’s appeal in cassation pursuant to Article 101a of the Judicial Organisation Act ( Wet op de Rechterlijke Organisatie ) as not prompting a determination of legal issues in the interest of legal unity and legal development.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention of the length of the criminal proceedings against him, in particular of the delay of two years, two months and two weeks which elapsed between 13 August 1992 when he was taken into police custody and 27 October 1994 when the merits of the charges against him were examined for the first time at the hearing before the Regional Court of The Hague.

THE LAW

The applicant complains of the length of criminal proceedings against him. He invokes Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:

“1. In the determination … of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by a … tribunal …”

The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of each case and having regard in particular to the following criteria: the complexity of the case, the conduct of the applicant and that of the competent authorities (cf. Eur. Court HR, Kemmache v. France judgment of 27 November 1991, Series A no. 218, p. 27, § 60). Persons held in detention are further entitled to special diligence in the conduct of the proceedings against them (cf. Eur. Court HR, Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 35, § 84).

In the present case, the proceedings started on 13 August 1992, when the applicant was taken into police custody, and ended on 7 May 1996, when the Supreme Court rejected the applicant’s appeal in cassation . The entire proceedings thus lasted about three years and nine months.

The Court notes that following the statement made by the witness X. on 26 April 1994 the proceedings were dealt with expeditiously and brought to an end within a period of about two years, during which time the case was examined by three levels of jurisdiction. However, the applicant’s complaint is directed in particular against the period of two years, two months and two weeks which elapsed between his arrest on 13 August 1992 and 27 October 1994, the date when the merits of the charges against him were examined for the first time at the hearing before the Regional Court of The Hague.

It appears that the conviction of the applicant, who had denied any involvement in the crime of which he stood accused, was based to a decisive extent on the statement of the witness X. The Court observes that the applicant has not alleged, and neither does it appear from the file, that the investigating and prosecuting authorities had or should have been able to trace X. sooner than they did. Although the case may not have been complex once it came to trial, the Court considers that the problems associated with the finding of evidence contributed to the complexity of the investigation and thus to the length of the proceedings as a whole.

The Court further observes that the applicant was not detained throughout the period of which he complains, but was released after three months of pre-trial detention.

Having regard furthermore to the total duration of the proceedings of about three years and three months, the Court cannot find that this period was unreasonably long for the purposes of Article 6 § 1 of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Michael O’Boyle Elisabeth Palm Registrar President [Note3]

[Note1] Please check if public or not. If not, put initials only. Name and, in capital letters, surname ; corporative name in capital letters ; no translation of collective names.

[Note2] First letter in capital letters plus the article according to normal speech.

[Note3] “President” is also put if the Chamber is not presided over by the Section President (Section Vice President or other judge according to seniority).